Op-Ed: Criminalizing Lies Is Dangerous, Unnecessary

And now, The Opinion Page. Does freedom of speech include the right to lie? After he boasted about his Medal of Honor, Xavier Alvarez became one of the first people convicted under the Stolen Valor Act, a law that makes it a crime to falsely claim military decorations. The case goes before the Supreme Court on Wednesday.

In an op-ed for The Washington Post over the weekend, Jonathan Turley argued, it can be dangerous to criminalize lies. After all, with the power to punish a lie, comes the power to define the truth, a risky occupation for any government. Well, where do you draw the line on freedom of speech? 800-989-8255. Email: talk@npr.org. You can also join the conversation on our website. That's @npr.org, click on TALK OF THE NATION. Jonathan Turley is the Shapiro professor of public interest law at George Washington University. He joins us here in Studio 3A. Nice to have you with us again.

JONATHAN TURLEY: Thank you.

CONAN: And so this claim that, I got the Medal of Honor or the Navy Cross or whatever is, criminalized by Congress because it impugns those who did receive those decorations.

TURLEY: It does, and on that we all agree. There's no disagreement as to treating this people as social pariahs. There's no disagreement in the shared anger we all feel when people falsely claim these things. But these fraudulent warriors are not hard to pick out in a crowd. These are a relatively small number of people, if you look at these cases. And they're people like Xavier Alvarez, who's the one in front of the Supreme court, and he claimed to be a 25-year veteran of the Marines, repeatedly wounded. He also claimed, by the way, to be someone who played for the Detroit Red Wings and was married secretly to a Mexican starlet. And a lot of people wondered how a guy like that ended up on the Three Valleys Municipal Water District in Claremont, California. And what they found out is that most everything he said after, I'm Xavier Alvarez, was false.

And the question is, is our anger enough at someone like Alvarez to allow the government to criminalize this lie? And it has less to do with the Medal of Honor as it does with government power. The government always starts criminalizing the people we hate the most. But the government's arguing here is something quite sweeping, that lies are simply not protected in the same way that truth is. But, of course, it comes out to who defines the truth? And we haven't done that in the past, and we can find ourselves on a slippery slope when the government starts to point out other lies that should be criminal just because they are lies as opposed to something else. When lies...

CONAN: Well, wait.

TURLEY: Yeah.

CONAN: If I lie to get a bank loan or to entice somebody into a business deal, that's a crime.

TURLEY: It is, because where punishing the lie becomes larceny, or becomes fraud or becomes perjury. We criminalize it because it has a collateral injury. What's different about the Stolen Valor Act of 1985 is it sought to create a criminal code for the other cases. We've always prosecuted these guys who say that they are veterans and raise money and get benefits. We prosecute them in a nanosecond, and everyone applauds the prosecution. This law was actually designed to get the other guys, the ones that didn't ask for anything except adoration.

CONAN: Yet adoration, respect can contribute to power. You, in fact, wrote about the case of the publisher of a major newspaper in Arizona, a crony of Senator John McCain, of course the senator from that state who was exposed as someone who had made up his entire naval career.

TURLEY: Indeed. Darrow Duke Tully said he flew 100 missions over Vietnam, actually crashed a jet in Korea, received enough medals to make a Soviet general blush, and he was found to have been a liar. But, you know, that's a good example of why we don't need the law. He was ridiculed. Everything that he had accomplished in his life was destroyed and most of these people are. They become social pariahs.

CONAN: When they get caught.

TURLEY: True. Most of these guys do get caught, you know, because they - it's addictive. You know, they can't stop promoting themselves. One person showed up at a high school reunion wearing a medal, identified him as a commander of the English realm. And so these guys are out of control. But it's true - can't some of these guys get by, by claiming a Silver Star? Yes. It probably can happen. But the question for us is more difficult, and that is where do you draw the line here? I mean, you're on a slippery slope. Once you start saying that lies can be crimes for their own right without any other showing by the government, it allows the government to criminalize a great variety of speech. We've had people lie about their military career since the colonial times, you know? General Von Steuben, the great hero...

CONAN: Hey, he was from hometown, Englewood, New Jersey.

TURLEY: Well, you should be ashamed. No, you should be very proud. He actually was a great hero. But he misled - and that's putting a nice spin on it - his own credentials. He said that he was a lieutenant general in the king of Prussia's service. In fact, he never made higher than a captain. He was mustered out under a cloud of controversy, and he lied.

CONAN: A grateful nation gave him a house in Englewood. We're not sure he ever lived in it, but we're claiming it anyway.

(SOUNDBITE OF LAUGHTER)

CONAN: All right. Here's an email we have from Dan in Fairfield, Iowa: I tend to support the Stolen Valor Act. I'm a Vietnam vet. For many years, we kept our mouths shut due to large amounts of criticism by others who never served. When it finally became OK to mention our service, a bunch of creeps came out of the woodwork, claiming to be heroes - or evildoers. I met folks claiming to be multiple special - multiple tour special forces who didn't know facts any kid who went through basic training would know. We need some - those - to those who never served, those who never experienced all the events and emotions that war cannot begin to understand the brotherhood and sisterhood of those who have.

TURLEY: Well, I find that extremely compelling, right up to the point of making it part of the criminal code. I think we would all support having a system to make it easier to find frauds, and in fact they are easy. I mean, many of these people are tripped up. There was a judge in Illinois who claimed two congressional Medals of Honor.

CONAN: And wanted a license plate, the Medal of Honor license plate.

TURLEY: Yes, he wanted a license plate. You had a sergeant who decided after he retired to make himself a two-star major general. Well, that wasn't hard to check. There's not a lot of them around. So we generally can uncover these people. But it's a mistake, I think, to view this as how do we feel about our heroes, because we shouldn't add constitutional injury to a social insult. We have ways of protecting our heroes, and we've done it very, very well. This is a small number of creepy people, as the listener said. But do you want those creepy people to open a door for the government to start criminalizing lies just 'cause they're lies?

CONAN: Let's get some callers in on the conversation. 800-989-8255. Where do you draw the line on free speech? Email: talk@npr.org. And Jeff is on the line from Richmond, Missouri.

JEFF: Hi, there.

CONAN: Hi.

JEFF: Well, as many of your callers will be, I'm a Vietnam vet with a Purple Heart and a tiny - what I call it a Honorable Mention for Valor. I - if I fought for anything, fought for free speech, no matter how creepy a creep it is, it has the right to tell all his lies, and we have the right to catch him and just drag him through the mud.

CONAN: So...

JEFF: No matter what a creep he is, I think he has the right to tell his lies. I object to the criminalization of lying.

CONAN: Thanks very much for the call, Jeff. And are there any circumstances under which you might reconsider?

JEFF: You know, you brought up the things like fraud, those count. But just to lie to be glorified, you know, my shrink says people sit in his office and lie to him about being a Navy SEAL, so he's looking at their DD214 on screen, and he knows they were clerk in charge of sox. What you're going to do? Let them go. I mean, let them lie.

CONAN: There's also...

JEFF: No, I wouldn't - I would not criminalize lying in the United States of America.

CONAN: All right. Thanks, Jeff, very much. Appreciate it.

JEFF: Thank you.

CONAN: There's also - the emailer said, the Vietnam vet - I'm approached to, you know, as everybody is, on the street often by people, you know, help out a Vietnam vet. If they're much younger than me, this can't have happened unless they serve when they were 12.

TURLEY: Right. And those people actually are engaging in a form of fraud. They're not prosecuted because they're panhandlers. But I think your last listener make a powerful point. The better part of valor that we respect in our heroes is not something that's enforced by the criminal code. And we can enforce better the social standard by creating new means to uncover frauds. But what happens, and I think this is by design, is members wanted to align themselves for their heroes, their powerful symbols, but it ignores the fact that what the government is doing here is really not about medals. It's about government power.

CONAN: There is also then the extension: what do you do about the concept called hate speech? This is used as an exacerbating factor in criminal cases, if it was taught to be a hate crime. Sometimes, it could be prosecuted. You get additional penalties for what some people say is: well, how do you read someone's intent.

TURLEY: Well, that's a very good point. And hate speech laws really are - continue to be controversial with many civil libertarians. But there is one mitigating aspect there, is that they're often connected to other crimes, and there also have an intent factor, that a jury has to find that they intentionally tried to use that speech essentially as a weapon. You also have the Brandenburg standard, where the Supreme Court says that you could criminalize speech that has - poses imminent harm. That is also very controversial, but it's also very narrow. The Supreme Court has kept those standards quite tight, tying them often to clear intent to create injury. What these liars are doing is - they're just lying. They're often flawed individuals. And studies have shown that people lie a great deal. It's one of the unfortunate things about our species. But if you start to expand government power to allow them to criminalize that natural, if unfortunate, characteristic of being human, you expand it beyond any definition or limit.

CONAN: Here's an email from Rita: If Congress is going to legislate lying, perhaps they need to start with themselves and campaign lies. Well, don't hold your breath, Rita. Jonathan Turley is with us. He's a public interest law professor at George Washington University, author of The Washington Post op-ed, "Lying about receiving the Medal of Honor? It's shameful - but it shouldn't be a crime." There's a link to that op-ed on our webpage. Go to npr.org. Click on TALK OF THE NATION. You're listening to TALK OF THE NATION from NPR News. And let's get Brian on the line. Brian with us from Portsmouth in Virginia.

BRIAN: Hi there. I was just calling because this kind of lie and this kind of issue, it shows a deeper problem where it's not about the lie. It's what they're gaining from it. And even the admiration and while your speaker believes it to be something that's not as much of an issue, this is a serious issue. This person is trying to take - because even with the Medal of Honor, there are several things that you receive for your children and for yourself for the rest of your life that it's just such a serious issue, and that any lie that can contribute even just admiration to yourself is a very dangerous path to go down.

CONAN: I think there's a distinction between seeking veterans' benefits or some sort of, you know...

BRIAN: Wait. But even to receive any kind of benefit, even if it's just the, oh, wow, congratulations for being there, that's - those are the kinds of things that it's not right to allow others to have. If you're not willing to make those kinds of things that any of those require, whether it'd be for - like you had said earlier about trying to get into a business or anything, those - it's the same kind of lie that's being presented. And as those are illegal, this should be illegal.

TURLEY: Well, you know, it's hard to argue with the basis of the point. I share the anger and I - that the listener has. But if you start to say that we'll criminalize it because you're getting these benefits of status, you criminalize every pick-up line used in every bar in history. For every Patrick Henry that said, he regret he only had one life to give for his country, there were a dozen of them in bars, in pubs in Boston saying they're off to join George Washington in the morning. And they all got some benefit from it. That's usually people lie to get some benefit. But we've always drawn this line on tangible benefits.

You go out and you get benefits as a Medal of Honor winner, if you start to claim tangible things, we prosecute you in a nanosecond. But I think the problem here is, what's the limiting principle? Yes, we feel very strongly about all these medals, not just the Medal of Honor. But how about, say, you're a former police officer or a former firefighter. Those groups legitimately can say it's wrong to claim what I have accomplished in my life. And you end up on this slippery slope as we begin to list the lies for which you can go to prison.

CONAN: Thanks for the call, Brian. It is also an extension of the reality that free speech is often uncomfortable speech. It goes back to the march of the Ku Klux Klan to Skokie, Illinois, - Nazis - to a town which many survivors of the Holocaust lived in. It goes back to the idea that in Germany, if you say, yay, Nazis, that's a crime. That's not a crime in this country. It is not a crime to burn the flag as part of political protest. This is uncomfortable for many people, but it is where the United States has drawn the line.

TURLEY: It is, indeed. And we're a standout in the world. We stand out for free speech. And we take with it all of the bad speech. But we believe and we've always believed that speech itself is disinfectant, that we can protect ourselves, that truth tends to rise to the top. And that means that there's a lot of creeps out there that say really creepy things. But this country has always stood squarely on the side of free speech. We've refuse to go down that road. Even though some of our closest allies like France and England have placed significant restrictions on free speech. We have not. And it would be a shame for the world to lose that. We can be justifiably proud that we have embraced this standard, and we've refused to amend it.

CONAN: Ian in Chapel Hill emails: If lying is outlawed, can we deputize PolitiFact?

(SOUNDBITE OF LAUGHTER)

TURLEY: Now there's an interesting point. But, you know, as a good point in that, we would be better served if we use all of our efforts and maybe some of our anger, to build up ways of disclosing who frauds are. And it's becoming easier on the Internet, you know? People say, I won Silver Star, you go and see who won Silver Star. You do a search of the name. And we could do better at things like that without handing over to the government this sweeping new power.

CONAN: We always have to recognize the name of Mike Boorda, the admiral who rose to become Chief of Naval Operations who took his own life after it was revealed that he had unfairly claimed a honor to which he was not entitled. And as we look at the scheme of things, an outsider who never served in the military, you say this was a fairly minor thing. Not to him it wasn't, he took his own life.

TURLEY: That's right, and not to the military culture. He was a remarkable individual. It's one of the saddest cases I've read because he really did deserve the respect of the entire nation. But he violated this core principle of the military culture. And it shows, by the way, how - that's the greatest deterrent, is that we all respect our heroes and even those who lie can't handle the truth when they're disclosed.

CONAN: Jonathan Turley is Shapiro - is it Shapiro or Shapiro?

TURLEY: It's actually Shapiro.

CONAN: Shapiro professor of public interest law at George Washington University. Again, his op-ed, you can take a look at it on our website. Go to npr.org, click on TALK OF THE NATION. He joined us here in Studio 3A. Tomorrow, a look at the internal politics of China, where communism and capitalism butt heads. Join us to that. I'm Neal Conan. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.